State v. JacksonState v. Jackson
Case Information
*1
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: February 26, 2020
No. A-1-CA-36400
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOSHUA JACKSON,
Defendant-Appellant. APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Drew D. Tatum, District Judge
Certiorari Denied, June 9, 2020, No. S-1-SC-38203. Released for Publication August 11, 2020.
Hector H. Balderas, Attorney General
Santa Fe, NM
Meryl E. Francolini, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
MEDINA, Judge. Defendant Joshua Jackson appeals his convictions for kidnapping with intent to commit a sexual offense, contrary to NMSA 1978, Section 30-4-1(A) (2003); two counts of criminal sexual penetration in the second degree (in the commission of a felony) (CSP II), contrary to NMSA 1978, Section 30-9-11(E)(5) (2009), two counts of felony aggravated battery against a household member, contrary to NMSA 1978, Section 30-3- *2 16(C) (2008, amended 2018), [1] criminal sexual contact (CSC) with a deadly weapon, contrary to NMSA 1978, Section 30-9-12(C) (1993), and misdemeanor aggravated battery against a household member, contrary to Section 30-3-16(B). Defendant argues that his convictions should be vacated because the State failed to join the instant case with a previous case, in violation of our compulsory joinder rule. Defendant also challenges his convictions on the basis of double jeopardy, ineffective assistance of counsel, and sufficiency of the evidence. We hold that Defendant waived his compulsory joinder claim by failing to raise the issue before his second trial. We further hold that (1) Defendant’s convictions did not violate double jeopardy, (2) Defendant failed to establish a prima facie case for ineffective assistance of counsel, and (3) Defendant failed to develop his sufficiency argument. Accordingly, we affirm.
BACKGROUND Defendant was charged in two separate cases based on events that occurred
between Defendant and his former girlfriend (Victim) on April 4, 2015 and April 10, 2015. The first case, State v. Jackson , Ninth Judicial District Court Case No. D-905-CR- 2015-00136 ( Jackson I ), was filed on May 4, 2015, and charged Defendant with kidnapping with intent to inflict physical injury and battery against a household member based upon the April 10, 2015 events. The second case, State v. Jackson , Ninth Judicial District Court Case No. D-905-CR-2015-00135 ( Jackson II ), was also filed on May 4, 2015—one minute before Jackson I —and charged Defendant with the crimes he now appeals based on the April 4, 2015 events. Defendant was arraigned in both cases at the same time on May 8, 2015. Following a jury trial in February 2016, Defendant was convicted of both crimes as charged in Jackson I . One year later, Defendant was found guilty of all crimes as charged in . We provide the following outline of Victim’s testimony given at Defendant’s trials, reserving discussion of additional facts and testimony as necessary for our analysis.
Testimony from Victim testified that she was in a relationship with Defendant in April 2015, who
was living at her house “off and on.” On the afternoon of April 10, 2015, Defendant called Victim and requested to come over to Victim’s house to collect some of his belongings. When Defendant arrived, Defendant and Victim began arguing. At some point during the argument, Defendant punched Victim in the ribs. Defendant then went into the other room to collect his belongings, at which point Victim “took off running” out the front door because she was afraid Defendant would continue to hit her. Defendant ran after Victim and caught up with her in an alleyway, and Victim fell to the ground. Defendant pulled Victim’s hair and dragged her back to the house by her arm. Once back in the house, Defendant locked the door, stood in front of it, and told Victim, “Stop being stupid. Don’t run out there. I’m not going to hit you.” When Victim agreed to stay, Defendant went into the other room to collect his belongings. At that point, Victim again “took off running” out the front door, screaming for help. Defendant 1All references shall be to the 2008 version of the statute.
again caught up with Victim, grabbed her, and began carrying her back to her house. Victim grabbed a nearby telephone pole in an attempt to stop Defendant from taking her back into the house. Defendant then bit Victim, prompting her to let go, and carried her back to the house. Sometime later, when Defendant was in another room, Victim ran out the front door for a third time, successfully escaping and alerting the authorities. Testimony from Jackson II
{5} Victim testified that on April 4, Victim and Defendant began arguing at a friend’s house because Defendant wanted to smoke methamphetamine, whereas Victim did not. The argument continued as Victim and Defendant returned to Victim’s house, where things escalated. Defendant punched Victim in the face, prompting Victim to scream and run toward the front door. Defendant chased after Victim, locked the front door, and told the Victim “to go sit down.” Even though Victim did not want to, she sat down. Defendant again struck Victim and told her to go into the bathroom. When Victim did not obey, Defendant dragged Victim by her hair into the bathroom. Once in the bathroom, Defendant “put all his weight” on Victim, pulled her pants
down, and inserted a stick into Victim’s anus. Defendant then tried to put a folding knife in Victim’s vagina, cutting her in the process and causing her to bleed. At some point during the struggle, Defendant forced Victim into the bathtub and scalded her with hot water. When Victim tried to get out, Defendant stood in front of her and forced his penis in Victim’s mouth. Victim bit Defendant’s penis, which prompted Defendant to punch her again in her face—causing her tooth to go through her lip. Victim did not report the incident until April 16—six days after she first spoke with
police regarding the April 10 incident. When asked why Victim did not report the incident right away, Victim responded, “Because I was locked in the house with him. I couldn’t go nowhere.” During cross-examination, defense counsel asked if Defendant ever left the house on April 4, to which Victim responded, “He didn’t leave until that day I took off running from him.” In response to defense counsel’s question asking Victim if she smoked methamphetamine or drank before she reported the incident, Victim answered, “No, I did not drink, I didn’t do nothing. I was just with him, like I couldn’t even leave my house. Like we were just sitting in the house all day watching TV.” Defense counsel then confirmed, “It’s your testimony that he didn’t leave the house at all over the next ten days?” to which Victim appeared to respond affirmatively.
DISCUSSION
I. Compulsory joinder We begin by addressing Defendant’s argument that his convictions stemming
from Jackson II should be vacated because the State violated Rule 5-203(A) NMRA, our compulsory joinder rule, by failing to join and . The State, in turn, argues that Defendant waived his claim for compulsory joinder because he failed to invoke Rule 5-203(A) below. Alternatively, the State argues that it was not required to *4 join Defendant’s charges because they stemmed from two separate incidents of distinct nature. We conclude that Defendant waived his compulsory joinder claim by failing to raise the issue before jeopardy attached in , and that the failure to join did not constitute fundamental error. In making these determinations, we need not address the issue of whether Defendant’s charges should have been joined.
Standard of Review “The proper interpretation of our Rules of Criminal Procedure is a question of law
that we review de novo.”
Allen v. LeMaster
,
A. Compulsory Joinder and the Remedy of Dismissal
“At common law, whether charges should be joined in the same indictment was a
matter of prudence and discretion which rested with the judges to exercise.”
State v.
Gallegos
,
Two or more offenses shall be joined in one complaint, indictment or information with each offense stated in a separate count, if the offenses, whether felonies or misdemeanors or both:
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts either connected together or constituting parts of a single scheme or plan.
(Emphasis added.)
In
State v. Gonzales
,
answered the question of what was the proper remedy for the state’s failure to join
offenses under Rule 5-203(A). In
Gonzales
, the defendant drove while intoxicated and
crashed her vehicle, killing a child in another vehicle.
“[the d]efendant’s behavior endangered a particular child that was foreseeable at the
time of the accident.”
Id.
¶ 32. We further held that principles of double jeopardy barred
the state from prosecuting the defendant for vehicular homicide.
Id.
¶ 33. On certiorari,
our Supreme Court affirmed the determination that the State was barred from bringing a
new charge of vehicular homicide.
See Gonzales
,
procedure require that similar offenses be joined in one prosecution and not be brought
piecemeal by way of sequential trials. . . . The rule is mandatory; it is not a discretionary
or permissive rule; it demands that the [s]tate join certain charges.”
Gonzales
, 2013-
*6
NMSC-016, ¶ 25 (internal quotation marks and citation omitted). Applying Rule 5-203(A)
to the facts of the case, the Court held that vehicular homicide and child abuse were
“two crimes based on the same conduct—[the d]efendant’s intoxicated driving resulting
in death to the victim[.]”
Gonzales
,
charges, the Court observed,
[w]hile the rule does not specify a remedy, we clearly intended that the rule have force. It would make little sense to have a mandatory rule with no method of enforcement; we would render it merely permissive. A bar against a subsequent prosecution on charges that should have been joined under Rule 5-203(A) is the only effective remedy to enforce the mandatory nature of the rule.
Gonzales
,
At the time Bossert was decided, Colorado had a compulsory joinder rule providing:
If several offenses are known to the district attorney at the time of commencing the prosecution and were committed within his judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any such offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution.
Id. at 1011 (citation omitted)). [2] In Bossert , the state filed three cases against the defendant, two of which were tried together. Id. at 1000. In November 1981 the state brought the first case charging the defendant with a single count of unlawful possession of an altered motor vehicle part. Id. at 1000-01. One month later, the state brought a separate case charging the defendant with another count of unlawful possession of an altered motor vehicle part. Id. at 1001. One year later, the state brought a third case charging the defendant with three counts of felony theft by receiving and four counts of unlawful possession of altered motor vehicle parts. Id. at 1002. The first case proceeded to trial in May 1983, resulting in the defendant’s conviction for the one count of unlawful possession. Id. at 1001. The latter two cases were tried jointly seven months later, resulting in a mixed verdict. Id. at 1002. Defendant appealed his convictions from all three cases, challenging the
constitutionality of his unlawful possession charges. Id. at 1000. While the defendant’s appeals were pending, the Colorado Supreme Court granted the defendant’s motion for limited remand to the trial court to permit him to file a motion to dismiss one of the latter- tried cases because the prosecution failed to join that case with the first. Id. at 1011. Following the trial court’s determination on remand that the state violated the compulsory joinder rule, the Colorado Supreme Court, sitting en banc, determined that despite the joinder rule’s mandatory language and the absence of a provision concerning waiver, the defendant waived his claim to compulsory joinder because he failed to raise the issue before the second trial. Id. at 1011-12. In arriving at this conclusion, the court noted, “Although the constitutional
proscriptions against double jeopardy form the basis of the compulsory joinder rule, the rule is broader than the constitutional limitation. . . . Compulsory joinder is designed to protect the accused against the oppressive effect of sequential prosecutions and to conserve judicial and legal resources that otherwise would be wasted[.]” Id. at 1011 (omission, internal quotation marks, and citations omitted). The court acknowledged that dismissal for failure to join was proper in cases where the defendant raises the issue prior to the beginning of the second trial because it “further[ed] the goals of compulsory joinder[.]” Id. Nonetheless, the court reasoned, “where . . . the defendant does not raise the issue of joinder until well after the conclusion of the second trial, neither of the public 2Colorado’s compulsory joinder rule and statute have since been amended to expressly provide that a defendant waives his or her right to compulsory joinder by failing to object prior to the time jeopardy attaches in the first trial if the defendant (or his or her counsel) knows of additional pending prosecutions required to be joined at the time. See Colo. Rev. Stat. Ann. § 18-1-408(e)(2) (2000); Colo. R. Crim. P. 8(a)(1) (2003).
policy reasons for the compulsory joinder rule would be served [by dismissal]—the harm, if any, has occurred.” Id. The court went on to speculate that the defendant determined that it was
“strategically preferable to keep the single charge in [the first trial] separate rather than risk the consequences of jury knowledge of the other eleven counts in [the combined second trial].” Id. at 1012. Nonetheless, the court found the defendant’s reasons irrelevant and concluded that its compulsory joinder rule “imposed no jurisdictional bar to the defendant’s conviction in . . . the second trial.” Id. Taking note of the American Bar Association Standards for Criminal Justice’s recommendation that “[a] defendant who has been tried for one offense may thereafter move to dismiss any additional offense based upon the same conduct or the same criminal episode. . . . The motion to dismiss must be made prior to the second trial [,]” id. at 1012 n.23 (emphasis added) (internal quotation marks and citation omitted), the court concluded the defendant waived his claim to compulsory joinder because he failed to raise the issue “prior to the time at which jeopardy attache[d] in the second prosecution[.]” Id. at 1012. Cases from other jurisdictions with compulsory joinder rules without explicit
waiver provisions reveal similar results.
See, e.g.
,
State v. Soule
,
these jurisdiction’s joinder rules, Rule 5-203(A) contains mandatory language and does
not include a provision concerning waiver by the defendant.
Compare, e.g.
, Colo. Rev.
Stat. § 18-1-408(2),
with
Rule 5-203(A). Likewise, the purpose of our rule is to protect
defendants from being subjected to successive trials for offenses stemming from the
same criminal episode, as well as avoid unduly burdening the judicial process by
repetitious litigation.
See Gonzales
,
3Because Defendant did not raise the issue of joinder at any point during the proceedings below, we leave open the question of whether a defendant who has knowledge of other pending charges waives his rights under Rule 5- 203(A) if he fails to request joinder before jeopardy attaches in the first trial. Relying on Gonzales , Defendant nevertheless contends that review is proper
here “in the same way that double jeopardy challenges can be brought for the first time
on appeal.” Defendant’s reliance is misplaced. Although compulsory joinder and double
jeopardy are closely related,
see Gonzales
,
charges stemming from
Jackson II
, as
Gonzales
arose out of an entirely different
procedural posture. There, the state declined to charge the defendant with the vehicular
homicide charge and only decided to pursue the charge after trying and losing on the
child abuse charge on appeal.
See Gonzales
,
C.
Failure to Join Did Not Constitute Fundamental Error
Defendant argues that even if he was required to raise the issue of joinder below,
the State’s failure to join and constituted fundamental error
because it allowed the State to “paint[] two very different versions of what supposedly
happened between [Defendant] and [Victim] between April 4, 2015 and April 10, 2015—
without ever having to reconcile the inconsistencies . . . [or] commit to one theory of
what happened that week[.]”
See State v. Turner
,
Victim the day before the April 10 incident and did not notice any injuries at that time,
and that there was no evidence that Victim had the injuries she sustained in the April 4
incident when she went to the hospital following the April 10 incident. Yet, Defendant
fails to explain—nor do we see—how these inconsistencies rise to the level of
fundamental error.
See State v. Salas
,
II. Double Jeopardy Defendant next raises several double jeopardy arguments. First, Defendant
raises a “unit of prosecution” claim, arguing that his two convictions for kidnapping in and Jackson II violate his right to be free from double jeopardy. Second, Defendant raises two “double description” claims, arguing that his convictions in for kidnapping and CSP II, as well as his convictions for CSC and aggravated battery violate double jeopardy. We address each argument in turn.
Standard of Review Double jeopardy protects against multiple punishments for the same offense.
See Swafford v. State
,
Jackson II violate double jeopardy because there was only evidence of a single, continuing kidnapping. Conversely, the State contends that Victim’s testimony from both cases established two separate kidnappings. Although Victim’s testimony in the two cases appeared inconsistent at one point, we conclude that there was sufficient evidence of two distinct kidnappings such that Defendant’s kidnapping convictions do not violate double jeopardy. Because we are examining multiple convictions under the same statute, we apply
a unit of prosecution analysis, which consists of a two-step inquiry to discern “whether
the [L]egislature intended punishment for the entire course of conduct or for each
discrete act.”
Swafford
,
between April 4 and April 10, not two discrete kidnappings occurring on each of those
dates. In support of this argument, Defendant appears to rely on Victim’s testimony
given during cross-examination in , in which Victim testified that she could not
*12
leave her house following the April 4 incident, as well as Victim’s apparent confirmation
during cross-examination that “[it was her] testimony that [Defendant] didn’t leave the
house at all over the next ten days [following the April 4 incident.]”
{31}
While Victim’s confirmation on cross-examination in
Jackson II
that Defendant
did not leave her house for the ten days following the April 4 incident was inconsistent
with Victim’s testimony in
Jackson I
that Defendant came over to her house on April 10,
our review requires us to “resolve all conflicts and indulge all inferences in favor of
upholding the verdict.”
McClendon
,
10 was sparse, Victim testified in Jackson I that Defendant called her on April 10 and requested to come over to her house to collect some of his belongings. It thus stands to reason that Defendant had left Victim’s house some time before April 10. Otherwise, he would not have needed to call Victim. It similarly stands to reason that Defendant terminated his intent to restrain Victim by freeing her before April 10, given that he requested permission from her to come over. Additionally, when defense counsel asked Victim in if Defendant ever left the house on April 4, she responded, “He didn’t leave until that day I took off running from him[,]”suggesting that Defendant left the house on April 10—which would be consistent with her testimony in . What’s more, Victim’s testimony indicated that Defendant did not attempt to confine Victim on April 10 until she “took off running” after Defendant hit her during an argument. Hence, although Victim and location of Defendant’s kidnappings overlap, there
was sufficient evidence that the two kidnappings were separated by, at a minimum,
Defendant’s departure from Victim’s house and his battery upon Victim, coupled with
Defendant’s termination of his intent to restrain Victim sometime between April 4 and
April 10. This constituted sufficient indicia of distinctness between the individual
instances of confinement, and, as a result, Defendant’s two convictions for kidnapping
do not violate double jeopardy.
See Dombos
,
description claims, we apply the two-part test set forth in
Swafford
. We first ask
“whether the conduct underlying the offenses is unitary, i.e., whether the same conduct
*13
violates both statutes.”
other, the inquiry is over and the statutes are the same for double jeopardy purposes—
punishment cannot be had for both.”
Swafford
,
1. Kidnapping and CSP II Defendant contends that his convictions for kidnapping and two counts of CSP II
in violate double jeopardy. The State, in turn, argues that there was no double jeopardy violation because the conduct underlying Defendant’s convictions for kidnapping and the two counts of CSP II was not unitary. “In specifically analyzing whether the conduct underlying kidnapping and CSP II
. . . convictions is unitary, this Court has held that unitary conduct occurs when the
prosecution bases its theory of kidnapping on the same force used to commit CSP II . . .
even though there were alternative ways to charge the crime.”
State v. Simmons
, 2018-
NMCA-015, ¶ 26,
the possibility that the jury found that the defendant accomplished the kidnapping through the same force used to commit the acts of CSP, given the vague jury instructions provided. See id. In contrast, the jury in this case was instructed to find, among other things, that “[t]he restraint or confinement [used to accomplish the kidnapping] was not . . . merely incidental to the commission of a [CSP.]” Thus, Simmons is distinguishable, as the jury necessarily relied on distinct conduct for Defendant’s kidnapping conviction. We, therefore, need not assume that the conduct underlying Defendant’s convictions for kidnapping and the two counts of CSP was unitary. The State made clear in closing that it based its theory of kidnapping and the
CSPs on different forces. The State argued, “Defendant kidnapped [Victim]. He
restrained her when [he] grabbed her by the hair and forced her into that bathroom.”
Victim’s testimony supported this theory. Victim testified that Defendant hit her and told
her to go into the bathroom. And when Victim refused, Defendant dragged her by her
hair into the bathroom. At that point, the crime of kidnapping was complete, although
continuing.
See State v. Dominguez
,
“all his weight” on Victim in the bathroom, forced her pants off, and committed the first
act of CSP by sodomizing Victim with a stick, and the second act of CSP by forcing her
to perform fellatio.
See State v. Montoya
,
2. CSC and Aggravated Battery
{42} Next, Defendant contends that his convictions for felony aggravated battery against a household member, as charged in count four, and his conviction for CSC violate double jeopardy. Although we agree with Defendant that the conduct underlying the two convictions was unitary, we conclude that the Legislature intended to punish the two crimes separately. CSC is defined as “the unlawful and intentional touching of or application of
force, without consent, to the unclothed intimate parts of another who has reached his
eighteenth birthday[]” and constitutes a fourth degree felony “when the perpetrator is
armed with a deadly weapon.” Section 30-9-12(A), (C)(3). Consistent with UJI 14-915
NMRA, the jury was instructed to find Defendant guilty of CSC if they determined, in
relevant part, that Defendant (1) “touched or applied force to the unclothed vagina of
[Victim] without [Victim’s] consent”; and (2) “was armed with and used a knife[.]” Aggravated battery against a household member is defined as “the unlawful touching or
application of force to the person of a household member with intent to injure that
person or another” and constitutes “a third degree felony if the aggravated battery . . . is
committed . . . with a deadly weapon.” Section 30-3-16(A), (C)(2). In order to find
Defendant guilty of felony aggravated battery against a household member, as charged
in count four, the jury was instructed to find, in relevant part, that Defendant: (1)
“touched or applied force to [Victim] with a knife”; (2) “intended to injure [Victim] or
another”; and (3) “[Victim] was a household member of [D]efendant.”
The State concedes the conduct underlying Defendant’s convictions for felony
aggravated battery against a household member and CSC was unitary. While we are
not bound by the State’s concession,
see State v. Tapia
,
our double jeopardy analysis to determine whether the Legislature intended to punish
the two crimes separately.
Swick
,
{46}
As a preliminary matter, we note that the parties argue over whether we should
apply the traditional or modified
Blockburger
test.
See State v. Ramirez
, 2016-NMCA-
072, ¶ 18,
member were subsumed within the CSC charge because the State relied on the same
facts and the same intent to establish both counts (i.e., Defendant’s cutting of Victim’s
vagina). We disagree. That Victim happened to also be a household member of
Defendant’s does not alter the State’s legal theory for CSC, which only required that
Defendant commit the sexual offense on “another.” Section 30-9-12(A);
cf. State v.
Gutierrez
,
happened to be her vagina, does not alter the State’s legal theory for aggravated
battery against a household member, which only required that Defendant touched
some
part
of Victim with a knife.
See
§ 30-3-16(A), (C). In other words, that the State used the
same set of facts to establish a common element of both charges—in this case, the
touching or applying of force to Victim with a knife—does not change the fact that each
charge required proof of a fact which the other did not. Accordingly, a presumption
arises that the Legislature intended a separate punishment for the violation of each
statute without violating double jeopardy.
See Silvas
,
Swick
,
III. Ineffective Assistance of Counsel Defendant claims he suffered from ineffective assistance of counsel due to his
counsel’s failure to: (1) watch Defendant’s recorded interview with police before trial, leading to the admission of otherwise inadmissible evidence; (3) move to join and ; and (3) object to an investigating officer’s testimony that a mark on Defendant’s penis was consistent with a bite mark, as well as his testimony regarding domestic violence victims and their fear of retaliation. We address each argument in turn. “In order to establish a prima facie case of ineffective assistance of counsel on
appeal, [the d]efendant must demonstrate that his counsel’s performance fell below that
of a reasonably competent attorney and that he was prejudiced by his counsel’s
deficient performance.”
State v. Uribe-Vidal
,
{53}
“We review claims of ineffective assistance of counsel de novo.”
State v. Pitner
,
A. Failure to Watch Video Evidence Defendant first claims his counsel was ineffective in failing to watch a video
recording of Defendant’s interview with police before trial. The facts as relevant to this claim are as follows. On the first day of trial, outside of the presence of the jury, the State indicated that it sought to introduce a video recording of Defendant’s interview with one of the investigating officers, Officer Rodriguez. Defense counsel objected to the introduction of the video because Defendant could be seen wearing an orange prison jumpsuit but stipulated to the admission of the audio. After the State pointed out that the video had been disclosed to Defendant for a substantial period of time and there had been no motions in limine filed regarding the video, the district court agreed that the issue should have been raised earlier and asked defense counsel if he had seen the video prior to that day. Defense counsel admitted that he had not seen the video but “was aware of it.” The district court sustained defense counsel’s objection and permitted the audio to be played. Officer Rodriguez testified about his investigation. During Officer Rodriguez’s
testimony, the State played the audio of his interview of Defendant. At one point during the interview, Defendant admitted hitting Victim and pulling her back into the house, breaking her cellphone in the process. When Officer Rodriguez clarified that Defendant was talking about the April 10 incident, defense counsel objected because Defendant was referring to facts from Jackson I . Additionally, defense counsel objected on the grounds of Defendant’s “obvious level of intoxication” during the interview. But because defense counsel had already stipulated to the admission of the audio, the district court overruled defense counsel’s objection and allowed the remainder of the audio to be played. Defendant argues that his counsel’s failure to watch the video led to the
introduction of evidence relating to —namely Defendant’s admission that he
hit Victim and pulled her back into the house—which amounted to unrelated prior bad
act evidence.
See
Rule 11-404(B) NMRA. Defendant also argues that had counsel
watched the video before trial, he would have filed a pre-trial motion challenging the
voluntariness of Defendant’s statements made during the interview based on
Defendant’s “obvious intoxication.” Although we cannot conceive of a reasonable trial
*19
tactic for counsel’s failure to watch the video of Defendant’s interview before trial,
Defendant cannot demonstrate sufficient prejudice to warrant a new trial.
See Roybal
,
evidence relating to the April 10 incident, we fail to see how there was a “reasonable
probability” that, absent Defendant’s objectionable statements, the jury would have had
a reasonable doubt respecting Defendant’s guilt.
Id.
Besides generally arguing that
Defendant’s statements were irrelevant and allowed the jury to consider that Victim’s
allegations “were part of a larger claim of abuse over the course of a week,” Defendant
fails to explain how the admission of his statements affected the jury’s determination of
his guilt, particularly in light of Victim’s extensive testimony regarding Defendant’s
actions. “Given this lack of specificity, Defendant’s allegation of prejudice amounts to a
mere assertion[,]” which is insufficient to demonstrate prejudice.
State v. Torres
, 2005-
NMCA-070, ¶ 18,
audio recording the level of Defendant’s intoxication—the only indication of which
comes from defense counsel’s objection, which is not evidence.
See State v. Hall
, 2013-
NMSC-001, ¶ 28,
B. Failure to Move for Joinder Next, Defendant claims his counsel was ineffective in failing to move for joinder
of and . The record is undeveloped with respect to any reasons why
defense counsel—who represented Defendant in both cases—would have thought it
tactically wise to join the two for trial before the same jury. Yet, as the Colorado
Supreme Court speculated in
Bossert
, it is possible that defense counsel, in this case,
determined that it was “strategically preferable” to keep the cases separate in order to
prevent the juries from learning of the facts pertaining to both incidents—facts which
included disturbingly violent conduct by Defendant.
C. Failure to Object to Lay-Witness Testimony Next, Defendant claims his counsel was ineffective in failing to object to Officer
Rodriguez’s testimony that a mark on Defendant’s penis was consistent with Victim’s
claim that she bit Defendant’s penis, which Defendant claims amounted to
impermissible lay witness opinion. Defendant does not, however, develop any argument
as to why it was improper for a lay witness to testify that a mark they observed on
someone’s body appeared consistent with a bite mark.
See State v. Winters
, 2015-
NMCA-050, ¶ 11,
Officer Rodriguez’s testimony that abuse victims may be “free to leave” an abuser but not “free [to leave] without any consequences” because, in his experience investigating domestic violence, abusers usually try to find the victim, leading to “possibly another beating.” Defendant claims that this amounted to impermissible lay witness opinion akin to diagnosing Victim with “battered woman syndrome.” Yet Defendant again fails to develop his argument that Officer Rodriguez’s brief testimony rose to the level of opinion requiring expert qualification or how the admission of the testimony prejudiced Defendant enough to warrant a new trial. As a result, we need not, and do not, address Defendant’s argument any further. See id. ¶ 46. In sum, Defendant fails to establish a prima facie case of ineffective assistance of
counsel for any of his claims. Accordingly, his claims are more properly brought through
a habeas corpus petition.
See Roybal
,
IV. Sufficiency of the Evidence
Finally, Defendant contends that there was insufficient evidence to sustain his
convictions. Defendant raises this argument, pursuant to
State v. Franklin
, 1967-NMSC-
151,
CONCLUSION For the foregoing reasons, we conclude that Defendant waived his claim for
joinder under Rule 5-203(A) because he failed to raise the issue prior to the second trial, and that failure to join did not constitute fundamental error. Finding Defendant’s remaining double jeopardy, ineffective assistance of counsel, and sufficiency arguments unpersuasive or undeveloped, we affirm. IT IS SO ORDERED.
JACQUELINE R. MEDINA, Judge
WE CONCUR:
LINDA M. VANZI, Judge
JULIE J. VARGAS, Judge